Randi Druzin is a journalist, author, former SRL, and current member of the Access Revolution Blog Steering Committee. Rob Harvie is a family lawyer in Alberta, and a former Chair of the Alberta Law Society Access to Justice Committee. He is currently the Chair of the NSRLP Advisory Board.
This blog is the third in a series in which Rob and Randi ask one another questions and debate critical access to justice issues from their individual perspectives as system user and service provider, respectively. See their previous exchanges here and here.
ROB: Randi, what did you want as an SRL that the legal system didn’t give you – and how could the system respond better to your needs?
RANDI: I was an SRL for one year. Based on my own experience, and the experiences of others in similar predicaments, I see several ways in which the legal system could better respond to the needs of SRLs.
The first is that the legal system could provide SRLs with the resources they need to navigate the system. To do that, law societies, justice ministries, and courts need to invest time and money into developing books, videos, and other resources, ideally in conjunction with the NSRLP, which is familiar with the needs of SRLs.
ROB: While we are never going to be able to provide the training and experience to make an SRL as comfortable and effective in court as a lawyer, the system could unquestionably be simplified and at least remove pointless complexity, that often serves the interests of judges and court administration rather than the consumers of legal services.
What’s more, when we design legal processes, we almost NEVER ask consumers for their input or even to test them out. When I was involved in a program to reform family law, I asked if we were going to include consumers in the process and was assured “they would be consulted”. Not included in the design process, but “consulted”. That’s not enough.
So often when I watch efforts at reform from inside the system, I see a confusion of egos each trying to put their fingerprint on how to make things “better” – which usually means adding layers of complexity to an existing problem, rather than removing them. And when consumers aren’t even at the table… well, you see what we end up with.
I think that providing more training and resources isn’t going to be enough. We can’t make the current system workable, in my opinion, for SRLs. Yes, some training and education is better than none, but what I would rather see is a fundamental system redesign to make it simpler and more intelligible, in which case, training and resources in turn would become much simpler and easier to create and maintain. So, while I think we could do better in providing resources, I suspect that because those resources seek to explain a stupid system, they are never going to be as helpful as you would like.
RANDI: SRLs want thesystem to offer them some respect and understanding. Fostering a better understanding of SRLs and why they are doing this requires judges, lawyers, and courthouse staff to be educated via workshops, conferences, and other events in which they interact with and learn about the experiences of SRLs. Law schools could make such events a mandatory part of their curriculum, and Law Societies could designate SRL-focused events as Continuing Professional Development hours.
ROB: Without question, justice system professionals working inside the system need to know and understand more about the experiences of SRLs. I have tried to explain to lawyers that SRLs are going to be highly anxious and occasionally difficult to work with because they are struggling to respond to a stupid system that they aren’t fully conversant with. In my experience, being respectful and honest in your approach is going to result in a better experience for opposing counsel, even without the idea that being decent should be its own reward. I think greater dialogue among all parties in the process – judges, lawyers, court administration, and consumers (both represented and self-represented litigants) – would go a long way in allowing us all to engage and express our respective concerns and frustrations in working with each other, and with the system itself.
RANDI: In my opinion, the legal system doesn’t protect SRLs from sharp practice — and no one should feel like plankton floating in a shark tank. To protect SRLs from lawyers who “play dirty,” the court needs to hold those lawyers to account for their behaviour. Members of the legal community and the NSRLP would have to discuss this matter at length and come up with initiatives that could effect change.
One example, floated by a judicial participant at the NSRLP dialogue event in October 2018, would be installing an Ombuds or someone in a similar role in each courthouse whom SRLs could go to if they believe they are facing sharp practice from opposing counsel. Of course, the way in which an Ombuds would be able to help would have to be determined in discussions between users and system professionals.
As well, judges and masters could be more diligent in enforcing the Rules of Civil Procedure, making lawyers and parties who deliberately violate the rules — often to game the system — pay for their transgressions in some way.
ROB: I’m going to first push back a little and then I am going to concede a little.
Firstly, most lawyers have at least a handful of experiences with obnoxious, and even threatening, SRLs. Too often those experiences results in the development of a stereotypical expectation which taints future engagement, and then becomes cyclical. Hostility breeds hostility.
An important difference is that typically an SRL deals with one lawyer, or has limited exposure to lawyers, whereas I’ve dealt with literally thousands of lawyers. My experience is generally positive: honest, ethical, and mostly cooperative. Not always. As with anything, some lawyers are terrible: incompetent, unethical, and horrendous to work with. And if you’ve dealt with one of these lawyers, your understandable feeling is that ALL lawyers are this way.
I like the Ombuds idea. I think an Ombuds would be a useful advocate to challenge lawyers and Law Societies, and to balance out to some extent the current practice of the fox guarding the hen house.
I also agree with you regarding the clear application of Rules – good lawyers are going to fully support this. For example, if an affidavit is not filed in time, it is not considered; that time limits are to be respected. And if the consequences are harsh, well, so be it. Of course, this may work more often to the detriment of the SRL than the lawyer (although the Supreme Court decision in Pintea may mitigate some of these consequences for SRLs in some circumstances).
Removing the degree of latitude in the application of the Rules reduces apprehension of bias. People will learn, including lawyers, that failure to comply with the Rules results in expected consequences. Things move faster. Which means legal fees go down. Which means, maybe, more SRLs become represented litigants.
Fundamentally, my experience is that many lawyers and SRLs want the same things:
- Courts and outcomes that are more predictable and less capricious.
- Rules and procedures that require less labor and which are easier to apply.
- Reducing the damage to the public and to lawyer reputations which poor and unethical lawyers cause – even if they are in the minority.
So, much less disagreement than one might have thought – but then, I suppose, that’s what happens when people talk with each other, instead of at each other.
Thank you Randi, for giving me some greater understanding of the points of discomfort you have with the current system. I think I largely concur with your thoughts, and you might be surprised to know that many lawyers experience many of the same concerns.
I like how this dialogue water down the issue of those who find the rule of law inconvenient and do as they please especially when dealing with SRLs. Do other SRLs get the feeling there is a secret pact between lawyers and judges that forbid any judge to fairly rule in favour of a SRL over a lawyer?
I have had the encounter and it is usually like the lawyer wants to ask the judge why Bro?. On the other hand the number of times I have had judges go rogue is way too many to ignore
13 years as a SRL, I became well versed in the Ontario legal system including the Court of Appeal. I first came to Ontario from Florida to argue a jurisdiction motion. While I was en route, opposing counsel faxed he could not attend. I offered to stay over a week in order to complete the hearing but counsel would not agree. I told the judge I would withdraw my motion and forgo costs thrown away in order to speed up hearing the case on its merits as long as there was a total publication ban on the case. The judge told opposing counsel’s agent “this is a gift” and find someone who could consent. Upon consent, the judge made the order as I requested. Within a year, multiple and widespread breaches began. I issued a contempt motion. A prominent lawyer posited that the prohibited publication originated from the court itself. Opposing counsel filed a motion to vacate the publication ban order. SIX YEARS LATER a retired judge heard the motion and he ordered it vacated NUNC PRO TUNC. They refused to vacate my original withdrawal which I had predicated on the publication ban-QUID PRO QUO. I clearly need not have agreed to withdraw my jurisdiction motion. Living outside Canada, I gained nothing from attorning to the jurisdiction and could have let plaintiffs fight themselves for a useless default libel judgment against me, unenforceable in the US for lack of comity. This is my experience with sharp practice, not only by lawyers, but also judges who may carefully craft orders seemingly against SRLs. Some disingenuous perversion of the law works-for lawyers and judges. The actual law, even practiced carefully and respecting orders, does not help a SRL. Not even close. I have seen a few rotten abogados make the bar(rel) rancid. So who cares that no one fixes that?
Regarding Cassandra Richards’ article posted here March 24, 2021: “Self-representation is a problem of the legal community…” Could be read as: “A mental illness scourge by any other name…”
My sense is that until the “problem” is observed and analyzed genuinely from both sides of the narcissistic looking glass, SRLs will continue to be constrained by judges through an ever-expanding OPCA lens. Having just watched “Ten days in a Mad-House” I wish a Nellie Bly could write “Ten Years in Court”. Her editor would need to dig up ALL records and reasons, not just those published complimenting lawyers.
By extension, why not call for an overhaul in the practice for costs awards? In the interest of economy, judges ought to be obligated to publish full reasons for costs (or no costs) in all SRL cases. Certainly, a vexatious SRL must pay and serve as a deterrent to others. But if a successful, rule-abiding SRL is not awarded costs (Fong) on the same basis and in quantum with the lawyer who dragged her through the system, we encourage perpetual waste of court resources and diminish access to justice. Follow the money—very closely.
I’m pleased to see Rob’s comment about the futility of providing more “resources” to try to help SRLs deal with a “stupid” system.
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What I haven’t see so far is any commitment to fundamental redesign of any part of the justice system.
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I continue to claim that I’ve reached a better understanding of what is wrong than most SRLs. I think that is so for a number of reasons, one significant one being that my experiences have not been in the arena of family law, which pits individuals against individuals (and so I presume often sees SRLs facing SRLs). I went up against powerful – politically powerful – entities, at one point commencing a lawsuit (for misfeasance in public office) naming then B.C. Attorney General (and former Court of Appeal judge) Wally Oppal. (To clarify that somewhat, the real misfeasance had taken place years before Mr. Oppal left the bench to become A.G., but when I brought it to his attention what I got in reply was a letter that I felt simply insulted my intelligence). Mr. Oppal’s former colleagues on the bench made sure that action didn’t even get out of the starting gate. You can read the result on CanLII here – https://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc991/2007bcsc991.html .
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So I’ve had a long journey (that is not really over) and I’ve dealt with a small army of lawyers. “Sharp practice” doesn’t come close to describing what I’ve witnessed.
To use a football analogy, at present and in my opinion, the system relies on the players to follow and enforce the rules. The system (especially, but not only, SRL’s) should have an impartial “referee” to do that. That is not properly the role of the presiding officer.
While that would be a considerable help, other things are also needed, maybe even more. Among those, for example, court(room) procedures are incredibly opaque and difficult to ferret out.
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One elephant in the room is the why of unaffordable legal costs. The answer to this question is unleashing tidal social-market forces that are beginning to ripple through the legal world. But it may still not be the answer either clients or attorneys are looking for. What are sustainable, affordable, thriving profit models for attorneys that enable them to realize the highest calling of their vocation?
While it could be true that “most lawyers have at least a handful of experiences with obnoxious, and even threatening, SRLs”, it is also true that most SRL’s, including myself, have experiences of being threatened by the opposing and even representing lawyers. Unfortunately, the SRLs’ experiences are not talked about very much, but lawyers’ experiences are inflated too much.
It could also be possible that Mr. Rob has connections mostly with good and reputable lawyers or the lawyers he connected with only showed their good side to him.
Stating, “As with anything, some lawyers are terrible: incompetent, unethical, and horrendous to work with” is to minimize the wide spread issue of lawyer incompetence. Because of our adversarial system, the lawyers are accustomed to deny the rights of the other party until they can prove. When the other party is self-represented, most lawyers are naturally inclined to use the power difference and take advantage of the vulnerability of the self-represented litigants for example, by not making proper disclosure or by making misleading submissions to the court. In the end, they want to, somehow, win the case for their paid clients, and the self-represented litigants’ susceptibility provide them with good chances to get that victory if necessary by making a few misleading submissions, without any fear of consequences.
I agree with Randi that SRL’s should be protected from the sharp practices of lawyers. Sharp practice is one of the common ways that lawyers use to oppress the opposing SRLs. Again, the lawyers’ relatively powerful position and SRLs’ vulnerability induce the lawyers to engage in sharp practice, without any fear of consequences, to somehow win the case for their paid clients.
I also agree with Randi that “judges and masters could be more diligent in enforcing the Rules of Civil Procedure, making lawyers and parties who deliberately violate the rules — often to game the system — pay for their transgressions in some way”, but I do not agree that rules should always be applied inflexibly or without any degree of latitude. Flexibility in the application of policies, practices and rules is highly important to accommodate the needs of our highly diverse and code protected individuals. Applying the rules without any flexibility or accommodation for code related needs is a violation of Human Rights.
A typical SRL may deal only with one lawyer. However, there are many such typical SRLs, altogether sharing the experiences of dealing with over thousands of lawyers. In some cases, a SRL, for example myself, alone might have dealt with a significant number of lawyers.
I am passionate about advocating for Human Rights. It is my observation that discrimination is very common in Ontario, but it is not very much acknowledged. One way to show it is to conduct research and publish reports, but I do not have the resources and the capacities to do that. Therefore, I wanted to show the high number of discrimination experiences that I, as a single person, experienced in Ontario. For that, I had to make several applications before the Human Rights Tribunal of Ontario based on my discrimination experiences, and because of that, I had to deal with around 25 lawyers. I can say the lawyers and even the judges are not trained enough in Human Rights Law although it is considered to enshrine the foundational principles of justice. In order to satisfy the UN and the International Community, Canada and all its provinces and territories adopted the International Human Rights Law into domestic law, but there is no real intention to implement it, for example, by ensuring all the lawyers and judges are trained in Human Rights law.
In my view, even a lay person can exercise his/her common sense and understand that preference is an unequal treatment, but the self-proclaimed experts such as lawyers and judges in one of my cases were unable to understand that preference is an unequal treatment. It must be an instinctual denial because if preference or privilege were unacceptable these lawyers and judges might not have obtained the positions that they currently enjoy.
From B.Bc.: thank you for the topic and the naturally highly charged replies. My ongoing experience as an SRL with mental disabilities is that the justice system is unintelligible. Example: I needed to file some sort of requisition to obtain a court date for an assize. Form requires I put in a date. Can’t get a date until I submit the form. Can’t put in a date until I submit the form. Can’t submit the form until I get a date… of course everyone, and I mean everyone , knew to cross out where it says Day o on the form and write in “week of” as already approved by scheduling, but no one would explain that to me. And so my form is filed late. All my forms are filed late because of simple barriers like this. From the front counter ladies who have been instructed not, on pain of death, to ever give out anything remotely resembling legal advice. Another example from yesterday? Trying to obtain a transcript of court settlement offer that demonstrates sharp lawyering. Found the online form to request. Drove 2 hours to court to file. Got it stamped for processing. Court calls back. Wrong form. This is a settlement conference, without prejudice. Need a court order. I thought that’s what I had done I explain, form needs judges signature. Nope, wrong form. Can you tell me what form? No, I don’t know. I say, so you know this is not the right form but you can’t tell me which is the right form? Now what do I do? She says, I don’t know, have a nice day…. broken system? Not even close. And I have so many similar stories like the rest of you. Consulting STL’s? I have learned the government uses consulting the affected party as a panacea. Sure we asked, but zero requirement to act. My thoughts go out to you all. Lorelei Rogers in B.C. Supreme Court.
While the system insiders continue to deny us a voice and ignore our issues they are succeeding in creating for themselves more problems. I recommend to everyone here that you invest some time reviewing the media’s reporting about Bill C-5, the text of which is appended to the copy of David Lametti’s March 9 letter included in this ipolitics article – https://ipolitics.ca/2020/03/10/lametti-wants-provinces-to-match-federal-bill-requiring-sexual-assault-law-training-for-judges/ .
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Note what this article then says about J. Michael MacDonald, the CJC’s “interim executive director”. The executive director of 16 years, Norman Sabourin, has evidently parted ways with the CJC. Other articles, though not this one, are talking about MacDonald’s opposition – as spokesperson now for the judges – to having legislation mandate what education judges should receive. There is sophistry on both sides in this debate. Then read the sentence in Lametti’s letter (2nd last paragraph) that begins, “Please be assured that I am committed . . .”, and ends, “. . . is sensitive to the cultural context of those involved.” “Cultural context”. What does that mean? Is there an SCC decision that tells us? Is it defined so that there’s no consideration of cultural context when SRLs are seeking a level playing field?
I believe as a journalist, Randi is in a better position to get across the messages about SRLs’ stories and the flaws of our legal system to the main stream population.
NSRLP is currently doing a good job on getting those messages to SRLs and their supporters or sympathizers. However, the large majority of population is misinformed by the main stream media organizations because they do not speak about SRLs’ stories or the flaws of our legal system. By interviewing only the lawyers and reporting only the good side of our legal system, the main stream media organizations misinform the general public and do not allow the public to see the reality.
The CBC is the worst of all media organizations, and unfortunately, most of the general public treat it as a trusted source. With the abundance of funding that the CBC receives from the government, which other media organizations do not, the CBC is able to act almost as a monopoly, and with its delivery of selected information, it is able to impart a false sense of legal security or guarantee of rule of law to the general public. Perhaps, if there is another media organization with equal amount of resources as the CBC has, it may allow for competition between the two media organizations and this competition may force them to report all good and bad stories competitively without being able to hide them from the public.
I suggest that NSRLP and all the supporting journalists come up with a strategy to get across the messages about SRLs’ stories and the flaws of our legal system to the main stream population notwithstanding the misinformation of the mainstream media acting as a barrier.